Point of Law: Hon’ble Supreme Court held that sending of notice by fax is permissible.

JUDGMENT :

1. This appeal is filed against the order of acquittal in CC No.1678 of 2003 dated 03.08.2007 passed by the XI Additional Chief Metropolitan Magistrate at Secunderabad.

2. The case of the complainant/appellant is that the appellant firm is a proprietary concern, selling tractors. The respondent/accused approached the appellant and took supply of tractors on credit basis. Towards repayment of the due, out of the sale transactions, the respondent issued Ex.P2 cheque bearing No.280702 and when the same was presented for clearance, it was returned for the reason of ‘exceeds arrangements’.

3. After examination of the witnesses produced by the appellant, the learned Magistrate found the respondent not guilty for the following reasons; i) telegram notice will not satisfy the requirement of statutory notice under Section 138 of the Negotiable Instruments Act and it should be followed by a letter of confirmation; ii) The telegram notice was sent on 11.07.2003, but the confirmation was sent on 08.08.2003 after a lapse of 28 days, which is beyond 15 days from the date of return of the cheque; iii) If the confirmation is notice taken into consideration, it is beyond the statutory period of sending notice; iv) When there is no proper and valid service of notice, there cannot be any valid cause of action.

4. Learned counsel for the appellant submits that the trial Court has committed an error in acquitting the respondent when the issuance of cheque was not disputed. Once the issuance of cheque and signatures are not disputed, a presumption arises under Section 139 of the Negotiable Instruments Act and in support of his contentions, Counsel relied upon the judgments in the cases of:

i) Sumeti Vij v. Paramount Tech Fab Industries, AIR 2021 SC 1281; ii) Gadela Vasantha v. Cybermate Infotek Ltd., 2012(1) ALD (Cri) 865; iii) Yoginder Kumar Sharma v. Ashok Kumar Sharma, Criminal Misc.(Main).362/1996 decided on 27.05.1999; iv) Gold Field Steels Pvt. Ltd., v. Sanjay Alloys Pvt. Ltd., ILR 2013 Karnataka 1607, v) Pattabirama Reddy v. Nageshwara Reddy, 2001 (2) ALT (CRI.) 493; vi) H.M.Brothers Pvt. Ltd., v. R.Monsing and sons Pvt. Ltd., Crl.O.P.No.28077 of 2006 and M.P.No.1 of 2006; vii) C.H.V.Appa Rao v. A.R.K.Film Enterprises, Criminal OP Nos.9894 to 9896 of 1993 . He further submits that sending of telegram is a valid notice since the certified copies of a telegram were filed into the Court under Ex.P5. When the said telegram was sent to the correct address, presumption under Section 27 of the General Clauses Act is raised and it has to be deemed service of notice. The confirmation letter being issued after the statutory period is of no consequence. In the said circumstances, the finding of the learned Magistrate has to be reversed.

5. On the other hand, learned counsel for the respondent submits that merely issuing of a telegram is not sufficient unless a confirmation letter is issued and that too within the statutory period prescribed under Section 138 of the Negotiable Instruments Act. Once the confirmation letter was issued after the period prescribed time, there is no valid notice and for the reason of there being no valid notice, prosecution cannot be launched under Section 138 of Negotiable Instruments Act. The other ground urged by the learned counsel for the respondent is that there is no personal knowledge of P.W.1 about the transactions in between the appellant firm and the respondent, as such, launching of prosecution by the GPA-P.W.1 is also not valid. Finally, the learned counsel for the respondent argued that the Courts at Hyderabad have no jurisdiction, since both the complainant company and the respondent are residents of Haryana and deliberately, the GPA holder has filed the complaint at Hyderabad. In support of his contentions, he relied on the following judgments: i) Angu Parameswari Textiles (P) Ltd., v. Sri Rajam decided on 24.01.2001 by Madras High Court; ii)SIL Import, USA v. Exim Aides Silk Exporters, Bangalore, (1999)